Bangalore District Court
Sri. Anil Kumar vs Sri. Ramesh Kumar on 9 October, 2015
IN THE COURT OF THE XVIII ADDL. CHIEF METROPOLITAN
MAGISTRATE, BANGALORE
DATED : THIS THE 9TH DAY OF OCTOBER 2015
PRESENT: LAKSHMINARAYANA BHAT.K., B.A., LL.B.
XVIII ADDL.C.M.M., BANGALORE
COMMON JUDGMENTS IN
C.C.NOS: 10305/2013, 10306/2013, 10317/2013 AND 10319/2013
Complainant: Sri. Anil Kumar,
S/o. Late. Anup Chand,
Aged about 38 years,
Residing at No: 27,
Busappa Building,
4th Cross, 5th Main,
Harijan Colony,
Ganganagar,
Bangalore-560 032.
(Represented by Shri.M.D.Raghunath.,
Advocate)
V/s.
Accused : Sri. Ramesh Kumar,
Proprietor of Hansaa Creation,
Aged about 32 years,
No:65/30, V.S.Lane,
Chickpet Cross,
Bangalore - 560 053.
(Represented by Sri.Gopal Singh.,
Advocate)
Offence complained of: U/s.138 of N.I.Act
Plea of accused: Pleaded not guilty
Final order Accused is found not guilty
Date of order: 9/10/2015
2 Common Judgment in
CC.Nos:10305/2013,
10306/2013, 10317/2013
and 10319/2013
JUDGMENT
The complaint was filed against the accused for the offence punishable under Section 138 of Negotiable Instruments Act (hereinafter in short referred as N.I. Act.).
2. After filing of the complaint, cognizance of the offence was taken. After recording sworn statement in pursuance of summons, presence of the accused was secured and he was enlarged on bail. The substance of accusation was recorded and the accused pleaded not guilty.
3. To prove the complaint averments, the complainant was examined as P.W.1 and has produced documents marked as per Ex.P.1 to Ex.P.6 in all the cases ie., C.C.No:10305/2013, C.C.No:10306/2013, C.C.No:10319/2013 and C.C.No:10317/2013. The statement of the accused under Section 313 of Cr.P.C was recorded. The accused entered his defence and was examined as D.W.1. He has produced documents marked as per Ex.D.1 to Ex.D.4 in C.C.No:10305/2013. In the other three cases he has got marked documents as per Ex.D.1 and Ex.D.2.
4. In all the above cases the complaint was filed against the same accused and the complaint averments and defence of the accused is one and the same. Therefore, I proceed to pass common Judgment. Heard 3 Common Judgment in CC.Nos:10305/2013, 10306/2013, 10317/2013 and 10319/2013 the arguments. The learned advocate appearing for the complainant has placed reliance on following reported Judgments.
(1) 2015 (3) AKR 513 in Gurupadaswamy V/s.
M.Partha.
(2) 2015 (3) AKR 147 in T.Vasanthakumar V/s.
Vijayakumari.
5. After analyzing the averments made in the complaint, oral and documentary evidence placed on record and after hearing the arguments, at this stage the points that arise for my determination are:-
1) Whether the complainant has proved he had advanced Rs.14 Lakhs hand loan to the accused and Ex.P.1 cheques issued by the accused in C.C.No:10305/2013, C.C.No:10306/2013, C.C.No:10317/2013 and C.C.No:10319/2013 in discharge of the said debts were dishonoured and even after service of notice, the accused had failed to pay the amount and thereby he is guilty of the offence punishable under Section 138 of N.I.Act?
2) What order?
6. My findings on the aforesaid points are as under:-
POINT NO.1 : In the Negative, POINT NO.2 : As per final order, for the following:-
4 Common Judgment in CC.Nos:10305/2013, 10306/2013, 10317/2013 and 10319/2013 REASONS
7. POINT NO.1:- That as per the complaint averments on 6/9/2012 the accused alleged to have borrowed hand loan of Rs.14 Lakhs from the complainant and in discharge of the said debt he has issued Ex.P.1 cheque in all the above referred cases drawn on Lakshmi Vilas Bank Ltd, BVK Iyengar Road Branch, Bangalore. That when the complainant presented those cheques, they were returned unpaid with an endorsement "Funds Insufficient". The complainant got issued statutory demand notice dated 16/10/2012 and the said notice was duly served on the accused on 18/10/2012. It is alleged even after service of notice the accused has neither made payment nor sent any reply. The complainant in his affidavit filed in lieu of examination-in-chief deposed as per the averments made in the complaint.
8. The accused in his defence evidence specifically deposed he is not having acquaintance with the complainant and as per his evidence the complainant is a total stranger. The accused has specifically submitted in February 2011 he had borrowed loan of Rs.1 Lakh from Suraj Kumar of Chikpet, Bangalore with interest at the rate of 5% per month. At the time of advancement of loan, the aforesaid Suraj Kumar alleged to have deducted a sum of Rs.20,000/- towards interest and has 5 Common Judgment in CC.Nos:10305/2013, 10306/2013, 10317/2013 and 10319/2013 paid only Rs.80,000/-. The accused claimed the aforesaid Suraj Kumar had obtained four blank signed cheques and four blank demand promissory notes in connection with the aforesaid transaction. The accused has deposed he has repaid the aforesaid loan amount at the rate of 25,000/- per month including interest. The accused further deposed in October 2012 the complainant had sent statutory demand notice claiming advanced Rs.14 Lakhs loan and in discharge of the said debt issued Ex.P.1 cheques subject matter of all these complaints. The accused further deposed he went to the address as mentioned in the notice on 4-5 times, but he could not meet the complainant. The accused has alleged the complainant is a relative of the aforesaid Suraj Kumar. The accused has further submitted he had sent reply to the statutory demand notice sent on behalf of the complainant. The accused has admitted Ex.P.1 cheques in all the above referred cases pertains to his Bank account and also his signature appearing in the said cheques. He further claimed taken legal action against the complainant and Suraj Kumar for the misuse of the cheque and FIR was registered against them before Chikpet police station. The accused specifically denied borrowed loan of Rs.14 Lakhs from the complainant or in discharge of the said debt he had issued in all four cheques marked as per Ex.P.1 in favour of 6 Common Judgment in CC.Nos:10305/2013, 10306/2013, 10317/2013 and 10319/2013 the complainant. For the aforesaid reasons he has prayed for dismissal of the complaint.
9. As per the complaint averments, in the above referred four cases, the complainant has claimed on 6/9/2012 advanced Rs.14 Lakhs hand loan to the accused. In proof of advancement of huge amount of Rs.14 Lakhs, except the contents of affidavit filed by P.W.1 in lieu of his examination-in-chief, there is absolutely no other documentary or oral evidence. It is further admitted the complainant did not insist the accused to execute any documents in proof of borrowing loan as on the date of transaction. Therefore, at this juncture, the question arises for determination is whether any prudent man may advance Rs.14 Lakhs without obtaining any documents from the borrower in proof of the transaction. Even if it is presumed the accused had issued in all four cheques marked as per Ex.P.1 in all the above referred cases, it is not a document in proof of advancement of loan. The cheques produced by the complainant can be considered as a document through which the accused alleged to have agreed to make repayment of the loan. The repayment of the loan through cheques is one of the modes of repayment. As per the evidence of the complainant, the accused alleged to have agreed to repay the loan amount on 28/9/2012. In between the date of alleged transaction 6/9/2012 till the date of cheque, there is only 7 Common Judgment in CC.Nos:10305/2013, 10306/2013, 10317/2013 and 10319/2013 a time gap of 22 days. Even though the complainant has claimed he had advanced Rs.14 Lakhs hand loan to the accused, the total cheque amount in all the above referred cases comes to Rs.14.10 Lakhs. Therefore, the evidence of the complainant regarding total loan amount and why the accused had issued cheque for Rs.14.10 Lakhs and the explanation forwarded by the complainant in this regard is unbelievable.
10. The accused has admitted he is a business man and borrowed loan of Rs.1 Lakh from Suraj Kumar and he had been asked to repay the loan with interest at the rate of 5% per month. P.W.1 during his cross- examination specifically admitted Suraj Kumar is his brother-in-law. That on 12/12/2014 the complainant during his cross-examination admitted as on the date of hearing Suraj Kumar was also present in the Court hall and he had accompanied to the Court with the complainant. Therefore, it is one of the strong circumstances to show the aforesaid Suraj Kumar got filed the present complaint through the complainant. The accused in his defence specifically alleged he had borrowed loan of Rs.1 Lakh from Suraj Kumar and at the time of the said transaction deposited 4 blank signed cheques and 4 demand promissory notes as a security for the transaction. It is pertinent to note that the complainant during his cross-examination shown ignorance regarding Suraj Kumar is doing money lending business and the aforesaid evidence of the 8 Common Judgment in CC.Nos:10305/2013, 10306/2013, 10317/2013 and 10319/2013 complainant is unbelievable. Since Suraj Kumar is the close relative of the complainant, his testimony regarding he is not aware the business of Suraj Kumar is utterly false. During cross-examination of the complainant, the accused has specifically contended, the complainant is not financially capable to advance Rs.14 Lakhs hand loan by cash. Moreover, the complainant has advanced the said amount to the accused in single installment and he has not produced any documentary evidence to prove how he had mobilised the said amount.
11. As per the evidence, the complainant claimed he is doing Real Estate business and his monthly income is Rs.25,000/- to 30,000/-. As per the admission of the complainant, he used to spend Rs.15,000/- to 20,000/- per month for his family expenses and therefore out of his savings of Rs.10,000/- per month, it is impossible to advance Rs.14 Lakhs hand loan. In addition, the complainant has specifically admitted he is not an Income tax assessee. For the assessment year 2013-14, an income of Rs.14 Lakhs was a taxable income. Since the complainant has not paid income tax, the legal inference to be drawn is that, for the financial year 2012-13 the income of the complainant was not exceeding income tax limits. In order to prove the financial capacity to advance Rs.14 Lakhs hand loan, the complainant could have produced his Bank account extract or any other documentary evidence. In the absence, 9 Common Judgment in CC.Nos:10305/2013, 10306/2013, 10317/2013 and 10319/2013 under normal circumstances no prudent man will keep Rs.14 Lakhs cash in his house without making any profitable investment. For the aforesaid reasons the complainant has failed to prove he had ready cash of Rs.14 Lakhs as on 6/9/2012 and advanced the said amount to the accused as hand loan.
12. The accused in his defence and during cross-examination of the complainant specifically claimed borrowed Rs.1 Lakh hand loan from Suraj Kumar in the month of February 2011 and deposited 4 blank signed cheques and demand promissory note as a security for the transaction. The burden to prove the aforesaid defence is upon the accused. The details of the cheque in all the above 4 cases is as below.
Cheque
Case
Sl. No. Number Date Amount
Number
1 10305/2013 235823 28/9/2012 60,000/-
2 10306/2013 235836 28/9/2012 4,00,000/-
3 10317/2013 069230 1/10/2012 4,50,000/-
4 10319/2013 235839 30/9/2012 5,00,000/-
Ex.D.4 is the Bank account extract produced by the accused for the period 1/4/2010 to 26/5/2012. As per the said document, the following cheque numbers were encashed on respective dates.
10 Common Judgment in CC.Nos:10305/2013, 10306/2013, 10317/2013 and 10319/2013 Cheque Encashment Sl. No. Number Amount date 1 235821 5/2/2011 811/-
2 235822 18/2/2011 2,500/-
3 235826 5/5/2011 9,000/-
4 235828 26/5/2011 3,150/-
5 235829 7/6/2011 7,000/-
13. In the above circumstances, the accused had issued Ex.P.1 cheques subject matter of the complaint in all these cases in the month of September 2012 is not probable, since cheque Nos: 235821, 235822, 235826, 235828 and 235829 were presented for encashment prior to June 2011. In the above circumstances the accused had deposited blank signed cheques to Suraj Kumar is apparently more probable. Even the accused has not issued cheques and the same cheque book having continuous serial number. Therefore, the possibility of in respect of different transactions the accused had handed over all the 4 cheques, subject matter of these complaints at different point of time is also probable.
14. Ex.D.3 Bank account extract of the accused for the period 1/6/2011 to 14/9/2011 in respect of current account No:
11 Common Judgment in CC.Nos:10305/2013, 10306/2013, 10317/2013 and 10319/2013 0161352000000204. Ex.P.1 in C.C.No:10305/2013 is the cheque pertaining to the said account.
Cheque Encashment Sl. No. Number Amount date 1 3/6/2011 69229 30,000/-
2 6/6/2011 69220 1,38,853/-
3 7/6/2011 69223 4,221/-
4 8/6/2011 69234 10,000/-
5 11/6/2011 69224 9,221/-
6 13/6/2011 69233 20,000/-
7 --do-- 69232 31,060/-
8 --do-- 69226 15,960/-
9 --do-- 69225 17,437/-
10 14/6/2011 69235 27,942/-
11 --do-- 69221 30,000/-
12 15/6/2011 69238 1,000/-
13 16/6/2011 69239 16,693/-
14 --do-- 69222 29,000/-
15 18/6/2011 69236 23,900/-
16 22/6/2011 69240 6,648/-
12 Common Judgment in CC.Nos:10305/2013, 10306/2013, 10317/2013 and 10319/2013 As per the above document Ex.D.3 and above details, cheque No: 69220 to 69240 were presented and encashed during June 2011. Therefore, the accused had issued cheque numbers 069230 in favour of the complainant on 1/10/2012 is also not probable.
15. The accused has initiated criminal action against the complainant and Suraj Kumar and as per his complaint, a case was registered as per Ex.D.2 in C.C.No:10305/2013 for the offence punishable under Sections 3 and 4 of Karnataka Prohibition of Charging Exorbitant Interest Act 2004 and Section 420 of I.P.C. Even though the accused was aware blank signed cheques are in the custody of Suraj Kumar, he did not issue any notice calling upon him to return those cheques. He had also not given any intimation to the Bank for stop payment in the event those cheques are presented for encashment. By producing Ex.D.3 and Ex.D.4 Bank account extract, the accused has proved his financial position and at no point of time the accused has maintained more than Rs.3 Lakhs. In the above circumstances, the accused was having financial necessity to borrow Rs.14 Lakhs and the purpose for which he had borrowed the said loan is not made out from the evidence of the complainant. Any prudent man before advancement of loan ascertains the purpose for which the accused is borrowing loan and his financial capacity to repay the said amount within stipulated 13 Common Judgment in CC.Nos:10305/2013, 10306/2013, 10317/2013 and 10319/2013 period. In the case on hand, the evidence of the complainant is absolutely silent regarding these aspects.
16. As per Section 139 of N.I. Act, there is a presumption in favour of the complainant that unless the contrary is proved Court shall presume that the cheque had been issued in discharge of any debt or liability. It is well settled principle of law that the burden to rebut the said presumption is upon the accused. In order to rebut the presumption, the accused is expected to take a probable defence and to place prima facie to prove the said defence. It is the duty of the accused to make out a case there was absence of consideration or passing of consideration was doubtful. In the case on hand, during cross- examination of the complainant and in his defence evidence, the accused has successfully made out the contention of the complainant that advancement of Rs.14 Lakhs hand loan is highly improbable. The accused has able to create doubt regarding complaint alleged loan transaction. The accused further proved Ex.P.1 cheques in all the above referred cases were not issued in favour of the complainant in discharge of any debt or liability. In this regard, I have referred Judgment reported in AIR 2010 Supreme Court 1898 in Rangappa V/s. Mohan case. In Para No.14 of the Judgment Hon'ble Apex Court held, it is a settled proposition that when an accused has to rebut the presumption 14 Common Judgment in CC.Nos:10305/2013, 10306/2013, 10317/2013 and 10319/2013 under Section 139, the standard of proof for doing so is that of 'preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubt about existence of legally enforceable debt or liability, the prosecution can fail. In addition I have also referred the Judgment reported in Kumar Exports V/s. Sharma Carpets reported in ILR 2009 KAR 1633. In Para No.20 of the aforesaid Judgment it is held as below:-
"The accused in a trial under Section 138 of the Act has two options. He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed. To rebut the statutory presumption an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial. The accused may adduce direct evidence to prove that the note in question was not supported by consideration and that there was no debt or liability to de discharged by him. However, the Court need not insist in every case that the accused should disprove the non- existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated. At the same time, bare denial of the passing of consideration and existence of debt, apparently does not serve the purpose of the accused. Something which is probable has to be brought on record for
15 Common Judgment in CC.Nos:10305/2013, 10306/2013, 10317/2013 and 10319/2013 getting the burden of proof shifted to the complainant. To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the Court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist. Apart from adducing direct evidence to prove that the note in question was not supported by consideration or that he had not incurred any debt or liability, the accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on the complainant. The accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act". For the aforesaid reasons the complainant has failed to prove advancement of Rs.14 Lakhs hand loan to the accused and in discharge of the said debt the accused had issued four cheques for Rs.14 Lakhs marked as per Ex.P.1. The accused has proved his defence as required under law. Therefore, my finding on Point No.1 is in the Negative.
17. POINT NO.2:- In view of my findings on Point No.1., the accused is liable to be acquitted for the offence punishable under Section 138 of N.I. Act. Therefore, I proceed to pass the following:-
16 Common Judgment in CC.Nos:10305/2013, 10306/2013, 10317/2013 and 10319/2013 ORDER Acting under Section 255 (1) of Cr.P.C, accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act 1881. He is set at liberty. The bail bond and surety bonds hereby stands discharged.
The original Judgment shall be kept in C.C.No:
C.C.No:10305/2013 and the copy of the Judgment shall form part of the record in C.C.No:10306/2013, C.C.No:10317/2013 and C.C.No:10319/2013.
(Dictated to the Stenographer, transcribed by her, corrected, revised and signed then pronounced by me in the open court on this the 9th day of October 2015).
(LAKSHMINARAYANA BHAT.K) XVIII A.C.M.M., BANGALORE.
ANNEXURE FOR C.C.NO.10305/2013
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : Sri. Anil Kumar.
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1 : Cheque No:235823 dated 28/9/2012 for Rs.6,00,000/-.
Ex.P.1(a) : Signature of the accused. Ex.P.2 : Bank endorsement. Ex.P.3 : Demand notice. Ex.P.4 : Postal acknowledgement. Ex.P.5 : EMS speed post receipt. Ex.P.6 : Copy of reply notice.
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:-
D.W.1 : Sri. Ramesh Kumar.
17 Common Judgment in
CC.Nos:10305/2013,
10306/2013, 10317/2013
and 10319/2013
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED: -
Ex.D.1 : Certified copy of order sheet in P.C.No:280/2013.
Ex.D.2 : Certified copy of FIR.
Ex.D.3 and 4 : Bank account extracts.
XXXXXXXXXXXXXXXXXXX
ANNEXURE FOR C.C.NO.10317/2013
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : Sri. Anil Kumar.
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1 : Cheque No:069230 dated 1/10/2012 for Rs.4,50,000/-.
Ex.P.1(a) : Signature of the accused. Ex.P.2 : Bank endorsement. Ex.P.3 : Demand notice. Ex.P.4 : Postal acknowledgement. Ex.P.5 : EMS speed post receipt. Ex.P.6 : Copy of reply notice.
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:-
D.W.1 : Sri. Ramesh Kumar.
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED: -
Ex.D.1 and 2 Bank account extracts.
(Documents are produced in
C.C.No:10305/2013).
XXXXXXXXXXXXXXXXXXX
ANNEXURE FOR C.C.NO.10319/2013
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : Sri. Anil Kumar.
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1 : Cheque No:235839 dated 30/9/2012 for Rs.5,00,000/-.
Ex.P.1(a) : Signature of the accused.
Ex.P.2 : Bank endorsement.
18 Common Judgment in
CC.Nos:10305/2013,
10306/2013, 10317/2013
and 10319/2013
Ex.P.3 : Demand notice.
Ex.P.4 : Postal acknowledgement.
Ex.P.5 : EMS speed post receipt.
Ex.P.6 : Copy of reply notice.
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:-
D.W.1 : Sri. Ramesh Kumar.
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED: -
Ex.D.1 and 2 : Bank account extracts.
(Documents are produced in
C.C.No:10305/2013).
XXXXXXXXXXXXXXXXXXX
ANNEXURE FOR C.C.NO.10306/2013
1) LIST OF WITNESSES EXAMINED FOR THE COMPLAINANT:
P.W.1 : Sri. Anil Kumar.
2) LIST OF DOCUMENTS MARKED FOR THE COMPLAINANT:
Ex.P.1 : Cheque No:235836 dated 28/9/2012 for Rs.4,00,000/-.
Ex.P.1(a) : Signature of the accused. Ex.P.2 : Bank endorsement. Ex.P.3 : Demand notice. Ex.P.4 : Postal acknowledgement. Ex.P.5 : EMS speed post receipt. Ex.P.6 : Copy of reply notice.
3) LIST OF WITNESSES EXAMINED FOR THE ACCUSED:-
D.W.1 : Sri. Ramesh Kumar.
4) LIST OF DOCUMENTS MARKED FOR THE ACCUSED: -
Ex.D.1 and 2 : Bank account extracts.
(Documents are produced in
C.C.No:10305/2013).
(LAKSHMINARAYANA BHAT.K)
XVIII A.C.M.M., BANGALORE.
19 Common Judgment in
CC.Nos:10305/2013,
10306/2013, 10317/2013
and 10319/2013
(Judgment pronounced in Open Court vide a separate Order) ORDER Acting under Section 255 (1) of Cr.P.C, accused is acquitted for the offence punishable under Section 138 of Negotiable Instruments Act 1881. He is set at liberty. The bail bond and surety bonds hereby stands discharged.
The original Judgment shall be kept in C.C.No:
C.C.No:10305/2013 and the copy of the Judgment shall form part of the record in C.C.No:10306/2013, C.C.No:10317/2013 and C.C.No:10319/2013.
XVIII A.C.M.M., BANGALORE.